CVZG and Repatriation Commission (Veterans' entitlements)

CVZG and Repatriation Commission (Veterans' entitlements) [2017] AATA 537 (27 April 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0470
Re:CVZG
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, Member
Date:27 April 2017
Place:Perth

The decision under review is affirmed.
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Brigadier AG Warner, Member
CATCHWORDS
VETERANS AFFAIRS – eligibility for service pension – whether applicant as an allied veteran incurred danger during a period of hostilities – whether applicant rendered qualifying service – decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 – s 5B(1)(a) – s 5C(1) – s 7A – s 120(4)
REASONS FOR DECISION
Brigadier AG Warner, Member
27 April 2017
INTRODUCTION

CVZG seeks review of a reviewable decision of the Repatriation Commission (Respondent) dated 20 July 2015 (T2/5-12) that affirmed a decision made by a delegate of the Respondent dated 24 December 2014 which determined that CVZG was not eligible to receive a service pension (T9/62-63).
CVZG lodged a claim, received by the Respondent on 25 November 2014, under the Veterans’ Entitlements Act 1986 (VE Act) on the basis of his claimed service as an allied veteran in Vietnam (T3/13-28).
The matter proceeded to a Tribunal hearing on 14 November 2016.
The Tribunal was assisted at the hearing by an interpreter in the Vietnamese language.
BACKGROUND
The following background facts are detailed in Exhibit 3 (paras 3.1 – 3.8):
The applicant was born on 31 December 1954.
In a claim for a service pension dated 21 November 2014 and received by the Department on 25 November 2015 (T3 pages 13 - 28), the applicant alleged he enlisted in Vietnam.
In the accompanying qualifying service details form dated 21 November 2015 (T4 pages 29 -33), the applicant alleged he enlisted at the age of 18 in April 1972 at the recruitment centre in South Vietnam and served with the Republic of Vietnam Armed Force. He alleges that he achieved the rank of Second Lieutenant. On page 30 of the Tribunal documents, he outlines the training he undertook, basic military and officer’s training in May and August 1972 respectively and served in the Soc Trang Sector unit under Colonel Lieuquangnghia.
In December 1973, the applicant alleges the outpost he was stationed at was surrounded and attacked by enemy forces ‘Phu Lol 2 Battallion (sic) of VC Local force’. He advises that he was not wounded, not made a prisoner of war and not discharged.
The applicant claims he was conscripted at T4 page 29 however in his request for review dated 22 January 2015 T10 page 65, the applicant advises he voluntarily enlisted.
On 24 December 2014, the respondent decided that the applicant was not eligible for a service pension as he was not an allied veteran as defined under section 5C(1) of the VEA (T9 pages 62-63).
The applicant sought review of this decision on 22 January 2015 (T10 page 65).
On 20 July 2015, a reviewable decision was issued by the respondent affirming the decision dated 24 December 2015 (T2 pages 5-12). The review officer determined that the applicant had not rendered qualifying service as an allied veteran under section 7A of the VEA. The review officer noted that the applicant had not provided documentation verifying he had enlisted in April 1972 and could not be reasonably satisfied he had incurred danger as an allied veteran prior to 11 January 1973.
ISSUE
It was agreed by the parties that CVZG was an ‘allied veteran’ as that term is defined in s 5C(1) of the VE Act, and that he was a member of a ‘defence force established by an allied country’ as that term is defined in s 5C(1) of the VE Act.
The Tribunal must decide whether CVZG incurred danger during a ‘period of hostilities’ within the meaning of s 5B(1)(a) of the VE Act, and whether he rendered ‘qualifying service’ within the meaning of s 5C(1) and s 7A of the VE Act.
The relevant provisions of the VE Act are as follows:
7A Qualifying Service
(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
...
(c)If the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy; or
(Emphasis added.)
5B War and operational area related definitions
(1) In this Act, unless the contrary intention appears:
...
period of hostilities means;
(a)World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
(c)the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included); or
(d) the period of hostilities in respect of Malaya from 29 June 1950 to 31 August 1957 (both included); or
(e)the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included).
(Emphasis added.)
5C Eligibility related definitions
(1) In this Act, unless the contrary intention appears:
...
allied veteran means a person:
(a) who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c)in the forces of a country that was at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(d)in forces that were at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia.
The Tribunal is required to determine this matter to its reasonable satisfaction: VE Act

s 120(4).
EVIDENCE
The Tribunal had before it the following evidence:
·The “T Documents” (T1-T10, pp 1-73) (Exhibit 1);
·Letter from the Applicant dated 27 May 2016 (Exhibit 2);
·Respondent’s Statement of Issues, Facts and Contentions dated 9 August 2016 (Exhibit 3);
·Copies of photographs (3) (Exhibit 4);
·Blog site extract – Danh Sach 10B72 (Exhibit 5);
·The oral evidence of the Applicant;
·The oral evidence of Mr Sutherland;
·The oral evidence of Mrs Nguyen;
·The oral evidence of Mr Tan; and
·The oral evidence of Mr Tran.
The Tribunal also had regard to submissions filed subsequent to the hearing, namely the following:
·Applicant’s Closing Submissions dated 10 January 2017;
·Respondent’s Closing Submissions dated 10 January 2017;
·Applicant’s Reply Submissions dated 24 January 2017; and
·Respondent’s Submissions in Reply dated 24 January 2017.
CONSIDERATION
Dissatisfaction
In submissions, Mr Hugh Nguyen has recorded dissatisfaction with the management of CVZG’s claim (Applicant’s Closing Submissions pp 6-7 and attached email dated 24 November 2016). The Tribunal notes the substance of Mr Nguyen’s concerns, but puts them aside. However, the matter before the Tribunal is difficult not only because of the significant passage of time, but because events and issues must be viewed to some extent through the fog of war and its aftermath. The Tribunal considers, for example, that it would be folly to expect Australian standards of bureaucracy and record-keeping to have been in place in South Vietnamese Regional Forces in the later stages of the Vietnam conflict.
Decision under review
The relevant determination by a Delegate of the Repatriation Commission concluded (T2/11):
Given that CVZG has not provided any documentation to verify he was enlisted in April 1972 as a member of the defence force established by an allied country during the period of hostilities, I cannot consider the examples listed in his application for service pension or provided in the request for review as supporting evidence.
After careful consideration of the evidence before me, I find that the decision of the Delegate of the Repatriation Commission dated 24 December 2014 is affirmed as I cannot be reasonably satisfied that CVZG incurred danger from hostile enemy forces between April 1972 and 11 January 1973.
I must state that I do not wish to detract in any way from CVZG’s service with the forces of an Allied country. I have no doubt that CVZG is an allied veteran under Section 5C of the VEA, and that it is highly likely that he was involved in battles with a hostile enemy, during which he incurred danger, between 11 January 1973 and the end of the Vietnam conflict in 1975. It is simply the case that I am required to consider the review in accordance with the requirements of the current legislation, and as such, I am unable to be reasonably satisfied that CVZG incurred danger as an allied veteran prior to 11 January 1973.
In an email dated 24 November 2016, Mr Hugh Nguyen states:
A teleconference was held between the parties on 21 March 2016 in which Mr Adrian Crowe participated on behalf of the Department. After a lengthy conference, the parties was (sic) able to agree on a number of issues outstanding. Mr Crowe indicated that the only issues remaining are those which the Applicant subsequently addressed in his letter dated 27 May 2016 (attached). The Applicant was advised during that telephone conference (which I was also present) that effectively that are (sic) no further issues to be addressed and the Department would decide the application based on the further information to be provided by the Applicant.
In the letter referenced in the preceding paragraph, CVZG details three incidents in which he claims to have been involved in 1972, and which he claims demonstrate that he was directly exposed to real and grave danger (Exhibit 2). Before the Tribunal considers whether CVZG incurred danger, it is necessary to determine whether he has rendered qualifying service within the meaning of s 5C and s 7A of the VE Act.
Date of birth
CVZG’s date of birth is a significant factor in the Tribunal’s considerations as it has some bearing on the questions at issue in the present proceeding. CVZG claims that he was born on 4 February 1954, but following the fall of Saigon in 1975, his father destroyed personal papers and documents related to his army service and any remaining personal documents were lost when he attempted to flee Vietnam. He further claimed that his wife and father-in-law bribed officials to obtain a new birth certificate, and not knowing his exact date of birth, the date 31 December 1954 was inserted into the new document. The Tribunal notes that the copy of CVZG’s birth certificate indicates that it was issued in 1970, well before the fall of Saigon. However, in cross-examination before the Tribunal, CVZG replied that the certificate had been made to look like it was created prior to 1975.
Although CVZG’s claimed date of birth and the explanation for the later date which appears on various documents might seem plausible in the circumstances which prevailed at the relevant time in Vietnam, CVZG’s marriage certificate provides conflicting evidence. Before the Tribunal, CVZG stated that the marriage certificate recording his marriage to Mrs Nguyen was accurate as it had been retained by his wife and not destroyed by his father after the fall of Saigon. The marriage certificate indicates that it was issued on 8 November 1973 and shows CVZG’s date of birth as 31 December 1954 (T5/47-48).
Before the Tribunal, Mrs Nguyen replied to a question regarding CVZG’s date of birth, saying: “The real day of birth is 4 February but because he lost all his document so later on the father help to make all the documents again”.
The date of issue shown on the marriage certificate was not tested before the Tribunal, however in replying to questions regarding the date of her marriage, Mrs Nguyen stated:
I want to say that because at that time we didn’t have the wedding ceremony … We met each other in school and then before 1972 and after that he went to join the army and at that time he was in the military training centre and I – I still stayed at home and went to study for another year and at that time I couldn’t come to visit him but after he graduated from the military training and then he went back home and then we lived together.
The Tribunal notes that although some significance is given to the details of the marriage certificate in the Respondent’s written closing submissions, no response or explanation is offered in the Applicant’s reply submissions dated 24 January 2017.
CVZG told the Tribunal that he had not previously advised the Respondent about the claimed earlier date of birth because “all the documents now I have is based on the date of birth on the birth certificate”.
Having considered all the relevant material, the Tribunal considers it more likely than not that CVZG’s date of birth is 31 December 1954 as shown on the birth certificate (T5/53) and marriage certificate (T5/47-48).
Date of enlistment
CVZG claims to have enlisted in April 1972. If his correct date of birth is 4 February 1954 as CVZG asserts, he would have been 18 years and 2 months old on enlistment. If his correct date of birth is 31 December 1954 (and the Tribunal is reasonably satisfied that it is) he would have been 17 years and 4 months of age. In his application for review dated 22 January 2015, CVZG provided the following details of his enlistment (T10/65):
On the 20^th April 1972, I voluntarily enlisted at IV Corps Recruiting Service Centre in Can Tho. After spending 2 weeks or so to undergo health checks and completing general documents, I was sent with the Convoy to Quang Trung Military Training Centre, located in Hoc Mon District, Saigon – III Corps.
In closing submissions dated 10 January 2017, the Respondent has provided extensive analysis of CVZG’s age, the circumstances of his enlistment and his claimed service. The Respondent concludes in part (para 50): “it is more probable that (sic) not, based on all the evidence, that the applicant enlisted at a time closer to his 18^th birthday (being, 31 December 1972), and that he completed his basic military training, followed by officer training in the first half of 1973”.
Although hampered by the lack of probative evidence, the Tribunal considers that the following material, taken with CVZG’s sworn evidence, is particularly relevant to the analysis of CVZG’s enlistment circumstances:
·The statutory declaration of former Army of the Republic of Vietnam (ARVN) captain, Mr Huu Tam Tran, which states; “In April 1972, I met him when I visited him at IV Corps Recruiting Service Centre in Can Tho – IV Corps before he transferred to Quang Trung Military Training Centre in Hoc Mon, Saigon III coorps (sic)” (T10/69). However, before the Tribunal, Mr Tran said that he could not recall the month in which he saw CVZG at the recruiting centre and could not confirm CVZG’s date of enlistment.
·In her evidence before the tribunal, Mrs Nguyen confirmed that CVZG voluntarily enlisted in 1972 and served in the ARVN prior to 11 January 1973.
·The statement of the President of The Republic of Vietnam Veterans’ Association of WA Inc and Vietnamese Services RSL Sub-Branch, Mr Nguyen dated 23 November 2014 to the effect: “He served in the Republic Vietnam Armed Forces from 20^th/04/1972 to 30/04/1975 of the rank of Second Lieutenant. The service number is: XX/XXXXX X. As the most of Vietnamese soldier, his personal paper has lost after 30/04/1975” (T5/34). Mr Nguyen did not provide evidence to substantiate or support his statement regarding CVZG’s service record.
·CVZG tendered a blog printout (Exhibit 5) in support of his assertion that he enlisted in 1972 and subsequently commenced training in that year that later included officer training. The Tribunal accepts CVZG’s membership of the blog group, but agrees with the Respondent’s relevant submission that (Respondent’s Closing Submission para 48):
… no weight can or should be given to the blog printout which was tendered as Exhibit 5 during the re-examination of the applicant. The circumstances of the creation of this blog were not established, nor was any reliable evidence led as to how a person could join the group. In the circumstances, the fact the applicant is a member of the blog group cannot corroborate or verify his evidence as to his service history.
·In cross-examination before the Tribunal, CVZG agreed that he might have been mistaken about the dates of his service in the ARVN:
You were saying in your evidence that your memory has been affected by the passage of time? – Yes
And, because it has been over 40 years since the incidents? – Yes
And your memory is also affected by the experiences you went through while you served for the South Vietnamese Army? – Yes
In the circumstances, it’s possible, isn’t it, that you are mistaken about the dates in which you provided service for the south Vietnamese Army? - Yes
·CVZG’s wife, Mrs Nguyen, gave evidence that CVZG voluntarily enlisted in 1972 after a “mobilisation order from the government in 1972”. The Tribunal notes the following relevant information contained in the DVA Officer’s Handbook (T2/10):
On 19 June 1968, a joint session of Parliament passed an agreement, signed by President Nguyen Van Thieu, authorising the mobilisation of all men aged between 18 and 38 into the regular forces and those over 16 and between 39 and 50 into self-defence duty. Ex-servicemen were recalled to the colours and it included provisions for the mobilisation of youths aged 17 and men between 39 and 43 into non-combatant service in an emergency. This agreement remained in place until May 1972, when further emergency measures were proclaimed.
Having carefully considered and weighed the evidence, the Tribunal is not reasonably satisfied that CVZG’s service with the ARVN commenced in April 1972. Rather, the Tribunal considers it more probable than not that CVZG enlisted closer to his 18^th birthday, that being 31 December 1972.
Danger from hostile forces between 31 July 1962 and 11 January 1973?
In the Qualifying Service Details form dated 21 November 2014, in response to a question regarding the most notable incidents of direct combat or being fired upon between 31 July 1962 and 11 January 1973, CVZG detailed an incident in December 1973 in Sub-sector Nga Nam, describing his role as: “The outpost I was stationed was surrounded and attacked” (T4/31). This information is consistent with that provided in CVZG’s letter dated 8 November 2014 (T7/56). CVZG makes no assertions in these two documents of incurring danger from the enemy before 11 January 1973.
As already mentioned at paragraph 15 above, CVZG later provided details of three incidents in 1972 in which he claims to have incurred real and grave danger (Exhibit 2). However, these incidents were said to have occurred in May 1972, August 1972 and October-December 1972 and must be considered against the Tribunal’s conclusion at paragraph 26 above that CVZG enlisted close to 31 December 1972.
Mr Sutherland provided written (T10/70-71) and oral evidence. Mr Sutherland is a distinguished and experienced Vietnam veteran who served with the Australian Army Training Team in South Vietnam. He provided valuable contextual information relevant to the present considerations and confirmed his belief that CVZG served in the ARVN prior to 11 January 1973. Mr Sutherland also provided positive comment on CVZG’s engagement and standing in the veteran community.

Mr Sutherland concluded his written statement dated 16 March 2015 (T10/71 at paras 13-14) as follows:
I know CVZG from my previous role as Acting CEO/State Secretary of The Returned & Services League of Australia WA Branch Incorporated (RSL WA) as he is the Vice President of the Vietnamese Services Sub-Branch of RSL WA.
Although I did not serve in Ba Xuyen Province, IV Corps where CVZG enlisted and eventually served and I had left SVN prior to his enlisting in the ARVN his recounting of his military service, operational experiences and incidents are consistent with my recollection of the types of operations I experienced with the RF and PF units across the Provinces and Districts within IV Corps and it is my opinion that his documentation of these events as stated are highly probable (T10/71).
(Emphasis original.)
Before the Tribunal, Mr Sutherland strongly agreed that the incidents described by CVZG in Exhibit 2 were incidents involving exposure to real danger from the enemy during hostilities. He also accepted that had the incidents occurred after 11 January 1973, they would be equally plausible.
The Tribunal is of the view that Mr Nguyen, Mr Tan and Mr Tran provided honest evidence to the Tribunal. However they did not serve with CVZG and were unable to provide the probative evidence necessary for the Tribunal to be reasonably satisfied regarding his application in the present proceedings. The Tribunal also considers that Mrs Nguyen provided honest evidence, in difficult circumstances. However, Mrs Nguyen did not give evidence of her knowledge of any involvement by her husband in incidents or engagements with the enemy prior to December 1973.
CONCLUSION
After careful consideration of all the material before it, and having due regard to the Tribunal’s precautionary note at paragraph 12 above, the Tribunal is not reasonably satisfied that CVZG rendered “qualifying service” by rendering continuous full-time service and incurring danger from hostile forces of the enemy at any time during the period 31 July 1962 to 11 January 1973.
Accordingly, the Tribunal must affirm the decision under review.
In reaching this decision, the Tribunal does not wish to detract from CVZG’s service with ARVN. The Tribunal considers it highly probable that CVZG incurred danger from the enemy in operations between 11 January 1973 and the end of the Vietnam conflict in 1975. However, as such events occurred after the Australian withdrawal from Vietnam, the Tribunal is unable to determine that CVZG rendered “qualifying service” during the relevant period of hostilities. Further, the Tribunal trusts that this decision will not adversely affect CVZG’s standing in the veteran community and particularly his standing within his fellow Vietnam service veterans.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member
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Administrative Assistant
Dated 27 April 2017

Date of hearing 14 November 2016

Representative for the
Applicant Mr H Nguyen

Representative for the
Respondent

Ms S Oliver

[2017] AATA 537

27 April 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date of hearing	14 November 2016
Representative for the Applicant	Mr H Nguyen
Representative for the Respondent	Ms S Oliver